Completing a pre-trial diversion program, and obtaining dismissal of the charges, does not constitute a conviction under immigration law as long as there has been no plea of guilty or no contest entered at any time.[51]  The new statutory definition of conviction requires a plea or admission of sufficient facts to constitute a conviction.  A dismissal that does not meet these statutory requirements does not constitute a conviction.[52] 

 

            Unfortunately, a recent decision from the Board of Immigration Appeals may disrupt this analysis.  In Matter of Cabrera,[53] the BIA held that a Florida deferred adjudication was a “conviction” for immigration purposes, even though a finding of guilt was withheld, because the court had still required the defendant to pay the standard costs, surcharges, restitution and fines required in a criminal court setting, finding that payment of these costs and fines was a form of “punishment” under the INA definition of “sentence,” as a matter of Federal law.[54]

[51] Matter of Grullon, 20 I. & N. Dec. 12 (BIA 1989) (disposition under Florida’s pretrial intervention program, Fla. Stats. § 944.025, held not a conviction for immigration purposes); Matter of Ozkok, 19 I. & N. Dec. 423 (BIA 1986).  This has not changed under IIRAIRA § 322, which amends INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) to create a statutory definition of conviction that is more encompassing than the definition set out by the BIA in Matter of Ozkok, supra.  See Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998) (en banc).  But see Salazar-Regino v. Trominski, 415 F.3d 436 (5th Cir. June 30, 2005) (Texas deferred adjudication following guilty plea to felony possession of marijuana constituted a conviction for removal purposes under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), even though it did not constitute grounds for removal under the BIA law in place at the time the plea of guilty was entered), following Moosa v. INS, 171 F.3d 994, 1005-1006 (5th Cir. 1999); De Vega v. Gonzales, 503 F.3d 45 (1st Cir. Sept. 17, 2007) (Massachusetts continuance of a criminal case based on an admission of facts sufficient for a finding of guilt and conditioned on payment of restitution constitutes a "conviction" under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) for immigration purposes, even though no actual finding of guilt had been made in this case); United States v. Zamudio, 314 F.3d 517 (10th Cir. 2002) (Utah plea in abeyance is a conviction for immigration purposes, satisfying INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), as a plea “to sufficient facts to warrant a finding of guilt.”).

[52] For more information, see N. Tooby & J. Rollin, Criminal Defense of Immigrants § § 7.27-7.32 (4th ed. 2007).

[53] Matter of Cabrera, 24 I. & N. Dec. 459 (BIA Feb. 27, 2008).

[54] INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B).

Third Circuit

CANCELLATION OF REMOVAL " STOP-TIME RULE " NOTICE TO APPEAR
Urbina v. Holder, __ F.3d __ (4th Cir. Mar. 17, 2014) (service of notice to appears stopped time for cancellation of removal purposes even though the notice contained missing charges, and incorrect information).

Lower Courts of Fourth Circuit

CONVICTION - PRETRIAL DIVERSION NOT A CONVICTION
Iqbal v. Bryson, ___ F.Supp.2d ___ (E.D. Va., Jan. 13, 2009) ("Had Petitioner been required to plead guilty or admit to facts surrounding the charges, New York's PDA and Texas' deferred adjudication program would be identical when analyzed under the statute. Instead of utilizing New York's deferred adjudication agreement, which does require the defendant to make a plea, Petitioner was involved in New York's PDA program, which has no such requirements. In as much as the Court finds that the first element required to establish a conviction under 1101(a)(48)(A) cannot be met, the Court need not analyze the second prong of punishment.").

Fifth Circuit

SENTENCE - PROBATION
United States v. Mondragon-Santiago, ___ F.3d ___, 2009 WL 782894 (5th Cir. Mar. 26, 2009) ("Deferred adjudication probation in Texas does not impose a sentence of imprisonment, and thus does not involve a term of imprisonment. From this analysis we conclude that Mondragon-Santiago's four years of deferred adjudication probation under Texas law is not a term of imprisonment under 1101(a)(48)(B), and thus is not an aggravated felony under 1101(a)(43)(F).").

Ninth Circuit

RELIEF " CANCELLATION FOR LPRS " CONTINUOUS PRESENCE REQUIREMENT
Vasquez de Alcantar v. Holder, 645 F.3d 1097, 2011 WL 2163965 (9th Cir. Jun. 3, 2011) (approved Form I"130 Petition did not confer admission status on an undocumented immigrant for purposes of showing seven years of continuous residence under INA 240A(a)(2), 8 U.S.C. 1229b(a)(2)).

CANCELLATION OF REMOVAL " CONTINUOUS PRESENCE " EMPLOYMENT AUTHORIZATION IS NOT ADMISSION
Guevara v. Holder, ___ F.3d ___ (9th Cir. Jun. 3, 2011) (grant of employment authorization, pending the approval of adjustment of status under 8 U.S.C. 1255, does not constitute an admission for purposes of calculating seven years of continuous residence for LPR cancellation of removal under INA 240A(a)(2), 8 U.S.C. 1229b(a)(2)).

Other

CONVICTION " NON-CONVICTION DISPOSITION " NO-PLEA DIVERSION
Practice Advisory. State no-plea diversion programs in which a defendants confession is not placed in the court file do not constitute convictions for immigration purposes under the statutory definition of conviction. INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A). The admission of facts referred to in this statute must mean an admission to the court, rather than to the prosecutor. It is possible, however, for an ICE attorney to ask the prosecutor for a copy and try to use it in removal proceedings to establish a conviction. An immigration judge could rule " wrongly " that when respondent agreed that the agreement admitting guilt could come into the court later, without objection, the noncitizen was admitting to the sufficiency of the facts in relation to a judicial proceeding sufficient to establish a conviction under the statute. In Maricopa County, Arizona, the drug diversion program does have the defendant sign a written confession, but that paper stays with TASC personnel (a private company), not the judge or the prosecutor. If the defendant completes the program, the TASC file is closed and only the certificate of completion is transmitted to the prosecutor. If the defendant fails the program, only then is the written confession transferred to the prosecutor, who then can use the written confession to re-start the prosecution. This system should be sufficient to avoid a conviction for immigration purposes. Thanks to Margarita Silva and Jonathan Moore.

RELIEF " CANCELLATION FOR NON-PRS " CONVICTION BAR NOT APPLICABLE TO TRO VIOLATIONS
Immigration counsel can argue that INA 240A(b)(1)(C), barring 10-year non-LPR cancellation for anyone convicted of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3), does not reach a person who was found by a court to have engaged in conduct that violated a qualifying portion of a protection order under INA 237(a)(2)(E)(ii), if the person was not convicted of an offense under the specified statutes. This removal ground does not require or mention a criminal conviction. On the other hand, it is based on a court determination of certain conduct regardless of whether that conduct constitutes a criminal offense, and regardless of whether the person was convicted of that conduct. Because INA 240A(b)(1)(C) requires a criminal conviction, rather than applying where the person merely committed an offense " as the Act so often does, it cannot apply to non-conviction based grounds such as INA 237(a)(2)(E)(ii). Because this removal ground is not based on a conviction, it cannot trigger the conviction-bar to non-LPR cancellation under INA 240A(b)(1)(C). Thanks to Jonathan Moore.

CONVICTION " NO-PLEA DIVERSION PROGRAMS " PRACTICE ADVISORY
Practice Advisory on Arizona TASC and similar programs: State no-plea diversion programs in which a defendants confession is not placed in the court file do not constitute convictions for immigration purposes under the statutory definition of conviction. INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A). The admission of facts referred to in this statute must mean an admission to the court, rather than to the prosecutor. In Maricopa County, Arizona, the drug diversion program requires the defendant to sign a written confession, but that paper stays with TASC personnel (a private company), not the judge or the prosecutor. If the defendant completes the program, the TASC file is closed and only the certificate of completion is transmitted to the prosecutor. If the defendant fails the program, only then is the written confession transferred to the prosecutor, who then can use the written confession to re-start the prosecution. This system should be sufficient to avoid a conviction for immigration purposes. Note that it is possible, however, for an ICE attorney to ask the prosecutor for a copy of the confession, to use in removal proceedings to establish a conviction. An immigration judge could rule " wrongly " that when respondent agreed that the agreement admitting guilt could come into the court later, without objection, the noncitizen was admitting to the sufficiency of the facts in relation to a judicial proceeding sufficient to establish a conviction under the statute. Thanks to Kathy Brady, Immigrant Legal Resource Center.